Not in this case. In X v Y, the tribunal had to decide if an employee’s fear that she might catch Covid-19 and needed to take steps to protect herself and others, amounted to a protected belief under the Equality Act 2010.
The law
Section 10 of the Equality Act protects employees who suffer discrimination because they hold (or don’t hold) a particular religious or philosophical belief. To be protected, the employee must demonstrate that their belief:
- is genuinely held
- isn’t an opinion or viewpoint (which is based on the information available at the time)
- relates to a weighty and substantial aspect of human life and behaviour
- has a level of cogency, seriousness, cohesion and importance, and
- is worthy of respect in a democratic society.
Facts
Ms X decided not to return to her workplace on 31st July 2020 because she was concerned about Covid-19. She told her employers that she was worried about the increasing spread of the virus and feared that she would get it and pass it onto her husband who was at high risk of getting seriously unwell from Covid-19. She claimed that her workplace posed a serious and imminent danger to her and others under section 100(1)(d) of the Employment Rights Act 1996.
Her employers withheld her wages, and she brought several claims in the tribunal.
The tribunal had to decide, as a preliminary issue, whether she had been discriminated against on the grounds of her beliefs about Covid-19.
Decision
The tribunal accepted that Ms X genuinely believed that she might catch Covid-19 and needed to take steps to protect herself and others. It also accepted that her belief was intelligible, cogent, and serious and important. It was also worthy of respect in a democratic society.
But it said that her fear was a ‘reaction to a threat of physical harm and the need to take steps to avoid or reduce that threat’ rather than a belief.
It accepted that fear about the harm caused by the virus was weighty and substantial but found that, in this case, Ms X’s concerns were about protecting herself and her partner. It said that this wasn’t wide enough to meet that criterion.
Ms X’s claim therefore failed.
What are the implications?
This is the first case that we’re aware of where an employee has alleged that fear of catching Covid-19 is a protected belief under the Equality Act.
It is far more common to see claims framed under sections 44 (detriment) and 100 (dismissal) of the Employment Rights Act. It will be interesting to see whether these sorts of claims increase. There were 183,037 new people with a positive test result for coronavirus on 29th December 2021 and it’s now clear that Omicron spreads much more quickly than previous variants.
Employees are usually expected to explain clearly why they believe their workplace or their commute is dangerous, and allow you to explain the steps you have taken and give you time to consider what else you can do to protect them or assuage their concerns.
Anybody who refuses to return to work on health and safety grounds must also be willing to take individual precautions to protect themselves and follow all reasonable management instructions to protect them, such as wearing masks, regularly washing their hands, and maintaining social distancing.
It’s not enough for the employee to establish there is a risk – they must be able to show that the risk is serious and imminent despite anything they and their employer can do to reduce it.
